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Appeals court considers whether grocery store's private parking claim suffices to challenge City of Boston zoning variances
Summary
Tropical Phase 2 LLC appealed a land court dismissal after the judge found Tropical’s traffic- and parking-impact expert speculative; the developer and City told the Appeals Court that the land court’s factual findings were supported and that private parking interests are not protected by zoning under Picard and related law.
Scott Ford, for Tropical Phase 2 LLC (24P1019), told the panel that the Land Court erred in dismissing Tropical’s challenge to zoning variances for a nearby development. Tropical’s lawyer said an expert report by Dr. Mark Warner showed that new residents and visitors to the proposed 10‑story building would use short-term parking and impose operational harms on Tropical Foods’ private parking area, requiring Tropical to spend staff time and money to enforce parking rules.
The court questioned Tropical’s expert conclusions and the record’s development on parking counts. "Your own expert basically says ... generally 40%, 30% of the spots are empty right now," a judge observed, pressing where the demonstrated harm was on this record. Tropical argued parking is cyclical and peak demand matters; the company sought to preserve the ability to pursue discovery after surviving a jurisdictional challenge.
Opposing counsel for the developer and for the City argued the Land Court’s factual findings were supported by parking counts, planned parking-management measures, and the Boston Planning & Development Agency review (Article 80) that set parking for the project. They also urged that Picard and recent precedents treat private economic interests in private parking as not within the zoning-protected public interest absent a specific statutory hook.
The panel heard argument on whether Tropical’s private-parking claim and expert affidavit were sufficient to survive a Rule 12(b)(1) challenge and indicated it would resolve the appeal after reviewing the Land Court record.
